Cooperation of SCAAP Recipients in the Removal of Criminal Aliens from the United States (Redacted)

Audit Report 07-07
January 2007
Office of the Inspector General

Executive Summary

As required by Congress (Public Law 109-162), the United States Department of Justice (DOJ) Office of the Inspector General (OIG) conducted an audit of the Office of Justice Programs’ (OJP) State Criminal Alien Assistance Program (SCAAP). The congressional mandate required the OIG to provide answers to four questions involving jurisdictions that receive SCAAP funding:

Whether there are States, or political subdivisions of a State, that have received compensation under Section 241(i) of the Immigration and Nationality Act (8 U.S.C. 1231(i)) and are not fully cooperating in the Department of Homeland Security’s efforts to remove from the United States undocumented criminal aliens (as defined in paragraph (3) of such section).

Whether there are States, or political subdivisions of a State, that have received compensation under section 241(1) of the Immigration and Nationality Act (8 U.S.C. 1231(i)) and that have in effect a policy that violates section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1373).

The number of criminal offenses that have been committed by aliens unlawfully present in the United States after having been apprehended by States or local law enforcement officials for a criminal offense and subsequently being released without being referred to the Department of Homeland Security for removal from the United States.

The number of [criminal] aliens... who were released because the State or political subdivision lacked space or funds for detention of the alien.1

SCAAP is a payment program administered by OJP, through its component the Bureau of Justice Assistance (BJA), in conjunction with the Immigration and Customs Enforcement (ICE) bureau within the Department of Homeland Security (DHS).2 SCAAP was authorized by the Violent Crime Control and Law Enforcement Act of 1994 to provide federal assistance to states and localities for the costs of incarcerating certain criminal aliens who are in custody based on state or local charges or convictions.3 In fiscal year (FY) 2005, BJA distributed $287.1 million in SCAAP payments to 752 state, county, and local jurisdictions.4

The following table displays the 10 jurisdictions that received the largest SCAAP payments from the FY 2005 appropriation. Collectively, they accounted for nearly 69 percent of the SCAAP payments made from that appropriation.

Although 752 jurisdictions received SCAAP payments from the FY 2005 appropriation, the vast majority of them received relatively small amounts. The following chart summarizes the number of recipients by dollar amount.

Source: OIG analysis of BJA data

The program reimburses states and localities that incur correctional officer salary costs for incarcerating undocumented criminal aliens who: (1) have at least one felony or two misdemeanor convictions for violations of state or local law, and (2) are incarcerated for at least four consecutive days during the established reporting period.7 Applicants for funding are required to provide correctional officer salary costs, the total of all inmate days, and details about eligible inmates housed in their correctional facilities during that period.

For the applications received, ICE assists BJA by checking the inmate data submitted by the jurisdictions that seek SCAAP payments to determine the immigration status of those inmates. This process is described as “vetting” the data.8

Historically, congressional appropriations for SCAAP have been less than the total amount sought by all the jurisdictions applying for SCAAP payments. As a result, BJA pays a pro rata amount of the jurisdictions’ submitted expenses. In April 2005, the Government Accountability Office (GAO) issued a report stating that 80 percent of the SCAAP aliens were incarcerated in the five states of Arizona, California, Florida, New York, and Texas in FY 2003. GAO found that SCAAP payments to four of those states were less than 25 percent of the estimated cost to incarcerate SCAAP criminal aliens. The FY 2003 SCAAP payments amounted to 12 percent of the estimated incarceration costs for California, 24 percent for New York, 17 percent for Florida, and 14 percent for Arizona.9

SCAAP RECIPIENTS’ COOPERATION WITH ICE

The first congressional question asked us to determine whether there are recipients of SCAAP funds that do not fully cooperate with the efforts of DHS to remove undocumented criminal aliens from the United States. Congress did not define “fully cooperate,” nor did our review of immigration legislation disclose any specific steps that localities are required to take to help effect the removal of criminal aliens from the United States.

To respond to this question, we interviewed ICE officials to obtain their views, distributed a questionnaire to 164 SCAAP recipients, and conducted independent testing in 7 jurisdictions that received SCAAP funding.10 Our field testing included interviews with local officials and review of local files.11

Views of ICE Officials

We asked ICE officials to identify SCAAP recipients that they believe do not fully cooperate with ICE in the removal of undocumented criminal aliens from the United States. Because ICE does not maintain records describing SCAAP recipients that do not cooperate in the effort to remove criminal aliens, they noted that any information they might provide us would be anecdotal.

We also contacted officials at ICE headquarters and solicited their views first about the cooperativeness of SCAAP recipients generally and later about the seven jurisdictions where we performed field work. ICE officials commented favorably with respect to the entities’ cooperation about every jurisdiction except the City and County of San Francisco, and they declined to suggest alternative sites for our field work.

According to an agent working at ICE headquarters, the ICE San Francisco Field Office has encountered difficulties, which they attributed to a “bare minimum” of cooperation. Specifically, we were told that ICE agents are not permitted to access San Francisco County jail records without the authorization and approval of the Sheriff. ICE agents are authorized to enter the jails to interview prisoners and to access the “all-jail alphabetical list” of inmates but they do not have authorization to access booking cards, housing cards or other jail records. ICE officials commented on this situation as being different from other localities that have allowed ICE agents such access. Despite these views expressed by ICE officials, San Francisco officials believe they are cooperating sufficiently with ICE.

In the absence of a congressional definition of “fully cooperating” to guide us, we developed specific tests to measure the degree to which SCAAP recipients assisted ICE in the effort to remove criminal aliens from the United States. We looked at whether SCAAP recipients: (1) inquire into the immigration status of individuals in custody; (2) notify ICE when criminal aliens are in custody; (3) accept detainers from ICE; and (4) notify ICE when criminal aliens are about to be released from custody.12

Our review did not disclose any instances of outright failure to cooperate with ICE in the removal of criminal aliens from the United States. Instead, we found that local jurisdictions often set the enforcement of state and local law as a priority, while sometimes permitting or encouraging law enforcement agencies and officers to work with ICE to some degree on immigration matters.

In addition to answering our questions on the level of cooperation received by state and local agencies, ICE officials also made suggestions on how to improve the SCAAP program. Some ICE headquarters officials expressed a desire to have responsibility for SCAAP transferred from BJA to ICE and to make SCAAP payments contingent upon participation in the “287(g)” program. Section 287(g) of the Immigration and Nationality Act provides that ICE may enter into a written agreement with a state or locality enabling qualified state or local law enforcement agents to carry out certain functions relating to immigration enforcement, including investigation, apprehension, or detention of aliens in the United States.13

Other ICE officials expressed the view that SCAAP is “misguided” primarily because SCAAP applications are based on a custody period in the year prior to the one in which payments are sought. In the view of those officials, payment for the past costs of incarceration does nothing to further the removal of undocumented criminal aliens currently in the United States.

Some ICE headquarters officials also stated they would like to have graduated payments based on the SCAAP recipient taking steps toward the removal of criminal aliens from the United States. Larger payments could be provided to a jurisdiction when a final order of removal is obtained and for participating in the “Section 287(g)” program. This would result in payment for assisting ICE in identifying and removing criminal aliens rather than merely housing them.

Results of Survey

We also surveyed 164 of the 752 state, county, and local agencies that received SCAAP funding from the FY 2005 appropriation and received responses from 99 jurisdictions. Our questionnaire included the following four questions designed to assess their cooperation with ICE:14

If law enforcement officers from your jurisdiction arrest an individual on state or local charges, do they generally ask the subject about his or her immigration status?

If law enforcement officers from your jurisdiction have reason to believe that someone they arrest may be an undocumented alien, do they generally inform ICE that the individual is in their custody?

Do the detention facilities in your jurisdiction generally accept detainers from ICE for undocumented criminal aliens in their custody?

Do the detention facilities in your jurisdiction generally alert ICE prior to releasing any undocumented criminal aliens in their custody?

None of the respondents answered negatively to all four questions. Fourteen respondents answered “no” to 2 questions and 5 respondents answered “no” to 3 questions.15

Thirty jurisdictions reported they do not generally ask arrestees about their immigration status. However, some jurisdictions explained that arrestees are asked about their country of birth rather than immigration status, and others stated that immigration status is determined during the booking process rather than at the time of arrest.16

Seventeen respondents reported they do not inform ICE when they have someone in custody who they believe may be an undocumented alien. However, many of those 17 jurisdictions added qualifying remarks. For example, some agencies stated that ICE agents come to the state or local institution to review files, which would obviate the need to inform ICE. Other jurisdictions criticized ICE and stated they do not inform ICE about possible undocumented aliens in their custody because they believe ICE will not respond.

Eighteen jurisdictions reported they do not alert ICE prior to releasing undocumented criminal aliens from custody. However, several of those jurisdictions added clarifying remarks. For example, one respondent stated they are generally not aware of the immigration status of individuals in custody. Another reported that releases of inmates must occur within a very short time after a local court orders the release. Another jurisdiction stated its officials do not alert ICE prior to releasing an undocumented criminal alien from custody “unless ICE asks us to.”

Results of Field Work

In addition, we interviewed officials and reviewed files at seven jurisdictions that received funding from the FY 2005 appropriation for SCAAP. The officials whom we interviewed included local officials knowledgeable in the areas of SCAAP and detention, as well as ICE officials who had dealings with the state, county, or locality. Local officials from all seven jurisdictions reported that their detention facilities: (1) accept ICE detainers for undocumented criminal aliens in their custody; and (2) alert ICE before releasing undocumented criminal aliens from custody.

To test these assertions, we reviewed a total of 76 files relating to criminal aliens who had been recently discharged from local custody at the 7 locations where we performed field work. We found that:

ICE was notified in a timely manner that the 76 criminal aliens were in custody;

We further examined the issue of cooperation between SCAAP recipients and ICE by researching the policies of localities that may have laws, resolutions, or other policies limiting the role of local agencies in the enforcement of immigration legislation. In some cases, localities have designated themselves with terms such as “sanctuary city” or “civil liberties safe zone.” ICE officials expressed dissatisfaction with the level of cooperation provided by some of these “sanctuary” sites.

We were able to locate an official “sanctuary” policy for only two jurisdictions that received at least $1 million in SCAAP funding, the State of Oregon, which received $3.4 million, and the City and County of San Francisco, which received $1.1 million and has designated itself as a “City and County of Refuge.” We also located an Executive Order issued by the Mayor of the City of New York limiting the activities of local law enforcement agencies and officers in the enforcement of immigration law.18 However, in each instance the local policy either did not preclude cooperation with ICE or else included a statement to the effect that those agencies and officers will assist ICE or share information with ICE as required by federal law.

The results of our review were inconclusive in identifying SCAAP recipients that were not fully cooperating with ICE in its efforts to remove undocumented criminal aliens from the United States. We found conflicting views between ICE and local jurisdictions as to what actions constitute full cooperation. In addition, our fieldwork at select locations found that the SCAAP recipients notified ICE in a timely manner of aliens in custody, accepted detainers from ICE, and promptly notified ICE of an impending release from local custody.

COMMUNICATION BETWEEN SCAAP RECIPIENTS AND ICE

The second congressional question asked us to determine whether any SCAAP recipients have in effect a policy that violates section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. § 1373). Two key provisions of this statute provide:

Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, or any individual.

Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:

Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.

Maintaining such information.

Exchanging such information with any other Federal, State, or local government entity.19

Views of ICE Officials

ICE officials objected to provisions of the administrative code of the City and County of San Francisco that limit the ability of local agencies and officers to communicate immigration information to ICE.

Results of Survey

We included a question in our survey asking about laws, regulations, or policies affecting each organization that might restrict the free exchange of immigration-related information between local law enforcement agencies and ICE. The 99 jurisdictions that responded to the questionnaire stated almost unanimously that there was no legislation or policy impeding the ability of local officers and agencies to communicate with ICE on immigration-enforcement matters.

Only the City and County of San Francisco gave a qualified “yes” in response to our queries about the existence of a local ordinance or a departmental policy limiting the ability of local law enforcement officers or agencies to exchange information with ICE relating to immigration enforcement. The response included a copy of Chapter 12H of the City Administrative Code, which contains a provision stating “no department, agency, commission, officer or employee... shall use any City funds or resources to assist in the enforcement of federal immigration law or to gather or disseminate information regarding the immigration status of individuals in the City and County of San Francisco unless such assistance is required by federal or state statute, regulation, or court decision.” [Emphasis added.] The Code also states “nothing in this Chapter shall prohibit, or be construed as prohibiting, a law enforcement officer from identifying or reporting any person pursuant to a state or federal law or regulation who is in custody after being booked for the alleged commission of a felony and is suspected of violating the civil provisions of the immigration laws.” Finally, the Code states that “nothing in this chapter shall preclude any... department, agency, commission, officer or employee from (a) reporting information to the INS regarding an individual who has been booked at any county jail facility, and who has previously been convicted of a felony committed in violation of the laws of the State of California, which is still considered a felony under state law; (b) cooperating with an INS request for information regarding an individual who has been convicted of a felony committed in violation of the laws of the State of California, which is still considered a felony under state law; or (c) reporting information as required by federal or state statute, regulation or court decision, regarding an individual who has been convicted of a felony committed in violation of the laws of the State of California, which is still considered a felony under state law.” 20

San Francisco city officials also cited provisions of a police department General Order, which states that generally “a member [of the police department] shall not inquire into an individual’s immigration status or release or threaten to release information to the INS regarding an individual’s identity or immigration status.” However, the General Order makes exceptions that parallel those enumerated in the City Administrative Code.

Results of Field Work

In our interviews with local officials at the seven sites, we asked if their jurisdictions currently have in effect any statute, ordinance, executive order, or other legislation or official policy prohibiting local law enforcement agencies and officers from freely exchanging information with ICE on the citizenship or immigration status of individuals. Officials at four of the seven sites we visited replied unequivocally, “no,” while officials at the other three sites gave qualified answers.

The State of Oregon has a state “sanctuary” statute, but the officials whom we interviewed believe it does not infringe on the exchange of information with ICE.21

Officials from the City of New York informed us there is no prohibition on exchanging information with ICE on individuals who have been arrested. Executive Order No. 41, issued by the Mayor, defines “immigration status” as “confidential information” and forbids disclosure except when “such disclosure is required by law.” The Executive Order also provides exceptions to the prohibition against disclosure when “the individual to whom [immigration] information pertains is suspected... of engaging in illegal activity, other than mere status as an undocumented alien” or “the dissemination of such information is necessary to apprehend a person suspected of illegal activity, other than mere status as an undocumented alien” or “such disclosure is necessary in furtherance of an investigation of potential terrorist activity.”22

Local officials stated the City of San Francisco Police Department’s policy is “consistent with its obligations under state and federal law, to adhere to the City of Refuge Ordinance. This ordinance prohibits the use of city resources to assist in the enforcement of federal immigration laws except in certain limited circumstances consistent with state and federal law.”

As previously mentioned, ICE officials objected to San Francisco’s policies but they did not raise any concerns about the flow of information to and from any of the other six sites where we performed field work.

RECIDIVISM OF CRIMINAL ALIENS RELEASED FROM LOCAL CUSTODY

The third congressional question asked us to determine how many criminal offenses were committed by criminal aliens who were released from state or local custody without a referral to DHS for removal from the United States.

To address this question, we performed limited testing to determine the number of subsequent arrests of criminal aliens who were released from state or local custody. We based our testing on information from the vetted FY 2004 SCAAP database, which was the last year when ICE reported to BJA on the status of every person identified in support of applications for SCAAP funding.23 There were 262,105 records in that database. We requested assistance from the Federal Bureau of Investigation (FBI) to have those records compared to arrest data in the FBI’s National Crime Information Center (NCIC).24

After querying NCIC, the FBI provided us with nearly 433,000 text files that could not be searched by automated means. The volume of files was too great to search manually and quantify the results. Consequently, we judgmentally selected a sample of 100 criminal histories, which we reviewed for evidence of arrests of criminal aliens subsequent to June 30, 2003. The criminal histories for 73 of the 100 individuals documented at least one arrest after that date. Those 73 individuals accounted for a total of 429 arrests, with 878 charges and 241 convictions. These figures represent an average of nearly six arrests per individual.

The charges for the 73 individuals ranged from traffic violations and trespassing to more serious crimes, such as burglary or assault. Some of those charges included:

Based on this limited sample, we cannot statistically extrapolate the number of offenses committed by undocumented criminal aliens who were released from local custody without a referral to ICE. Based on the information available to us in the criminal histories, we could not determine the number of the criminal aliens in our sample that were deported, if any, and later arrested after reentering the United States. We also could not determine if ICE was notified before the criminal aliens in our sample were released from custody. But if this data is indicative of the full population of 262,105 criminal histories, the rate at which released criminal aliens are rearrested is extremely high.

CRIMINAL ALIENS RELEASED DUE TO LACK OF RESOURCES

The fourth congressional question asked us to determine how many of the criminal aliens who were released from state or local custody were released for lack of sufficient detention space or funding to hold them. While we believe it likely that this occurs regularly, our review could not identify specific instances of such releases because ICE does not track the number of aliens released from local custody due to lack of the necessary resources to detain them.

In an effort to address this issue, the questionnaire that we sent to 164 SCAAP recipients included a request that the respondents provide the number of criminal aliens who were released from custody between October 1, 2004, and June 30, 2006, because the respondent lacked the space or funds to detain those aliens. None of the respondents reported having released criminal aliens from custody due to lack of resources.

Even though the respondents to our questionnaire did not report releasing undocumented criminal aliens because of insufficient local resources, we noted an issue regarding the lack of space available to ICE to detain aliens in custody. In an April 2006 report, the Inspector General of the Department of Homeland Security reported, “[the Detention and Removal Operations (DRO)] estimates that in FY 2007 there will be 605,000 foreign-born individuals admitted to state correctional facilities and local jails during the year for committing crimes in the U.S.26 Of this number, DRO estimates half (302,500) will be removable aliens. Most of these incarcerated aliens are being released into the U.S. at the conclusion of their respective sentences because DRO does not have the resources to identify, detain, and remove these aliens under its Criminal Alien Program (CAP). It is estimated that DRO would need an additional 34,653 detention beds, at an estimated cost of $1.1 billion, to detain and remove [them].”27

The DHS Inspector General went on to state, “a dditionally, DRO’s ability to detain and remove illegal aliens with final orders of removal is impacted by: (1) the propensity of illegal aliens to disobey orders to appear in immigration court; (2) the penchant of released illegal aliens with final orders to abscond; (3) the practice of some countries to block or inhibit the repatriation of its citizens; and (4) two recent U.S. Supreme Court decisions which mandate the release of criminal and other high-risk aliens 180 days after the issuance of the final removal order except in ‘Special Circumstances.’ Collectively, the bed space, personnel and funding shortages coupled with the other factors, has created an unofficial ‘mini-amnesty’ program for criminal and other high-risk aliens.”

The DHS Inspector General reported that 345,006 criminal aliens were apprehended between FYs 2001 and 2004, of which 27,947 (8 percent) were released. However, the DHS Inspector General could not determine whether they were released because of a lack of detention space or for other reasons, because ICE does not track that information.

Footnotes

See Appendix II of this report for Public Law No. 109-162, section 1196 (c), (2006).

Prior to creation of the DHS in 2003, the functions currently performed by ICE were performed by the Immigration and Naturalization Service, which at the time was part of DOJ.

Public Law No. 103‑322 (1994).

FY 2005 is the most recent year for which payment information was available. See Appendix III for payment information for FYs 2005 and 2004.

When we define a jurisdiction as the “state,” we are referring to the state department of corrections. We are not including all the counties and municipalities within the state that may have separately received SCAAP payments.

This refers to the Los Angeles County Sheriff’s Department.

The reporting period does not coincide with the fiscal year for which SCAAP funds are appropriated. For example, the reporting period for FY 2006 funds was July 1, 2004, through June 30, 2005. Similarly, the reporting period for FY 2005 funds was July 1, 2003, through June 30, 2004.

According to a July 2003 Memorandum of Understanding between ICE and OJP, ICE agreed to determine, by SCAAP applicant, the number of eligible inmates.

Government Accountability Office. Information on Criminal Aliens in Federal and State Prisons and Local Jails, GAO-05-337R, April 7, 2005. GAO reported that data on the cost of incarceration for the State of Texas were not available.

See Appendix IV for a list of the jurisdictions we surveyed and those that responded. The 164 agencies in the sample received $264.8 million, or 92.2 percent of the FY 2005 SCAAP payments. The 99 respondents to our questionnaire received $205.4 million, or 71.6 percent of the FY 2005 SCAAP payments.

We performed field work at the State of California Department of Corrections and Rehabilitation; State of Oregon Department of Corrections; State of Texas Department of Criminal Justice; Clark County, Nevada; Cook County, Illinois; City of New York, New York; and the City and County of San Francisco, California. We selected these sites to have a mix of state, county, and local jurisdictions that received SCAAP payments of at least $1 million each. Collectively, these seven jurisdictions received $128.3 million, or 44.7 percent of the SCAAP payments issued from the FY 2005 appropriation.<

A detainer is a notice from ICE asking officials at the detention facility to notify ICE before releasing a detainee.

8 U.S.C. § 1357(g) (1996).

Our questionnaire included boxes where the respondent could check “yes” or “no.” However, some respondents wrote in “not applicable,” or “unknown,” and, in some cases, the respondent chose not to answer a particular question. Our questionnaire also included spaces where the respondent could add explanatory comments.

See Appendix X for additional details about the responses that contained more than one negative answer.

Thirty-four jurisdictions checked the “no” box on the questionnaire, but 4 of those 34 jurisdictions added comments stating that they are custodial institutions and their officers do not have arrest authority.

Five of the remaining six individuals were transferred to other jurisdictions, such as a state prison, and one, a Cuban, was paroled because repatriation to Cuba was not possible.

See Appendix VII.

The statutory references to the Immigration and Naturalization Service now apply to ICE.

The San Francisco City Administrative Code references to INS now apply to ICE.

The State of Oregon “sanctuary” statute is located in Appendix VI.

A copy of the Executive Order may be found in Appendix VII.

FY 2004 SCAAP funding was based on the incarceration of criminal aliens between July 1, 2002, and June 30, 2003.

NCIC is a computerized database of criminal justice information available to law enforcement agencies nationwide. The NCIC database consists of millions of records arranged in 18 files, including one relating to immigration violators.

The “terrorist threat” cases related to misdemeanor charges based on domestic disputes.

At our exit conference, representatives of DRO stated that references to “DRO” in the DHS OIG report would in this context be more appropriately read as “ICE.”

Department of Homeland Security, Office of the Inspector General. Detention and Removal of Illegal Aliens: U.S. Immigration and Customs Enforcement (ICE), OIG-06-033, April 2006, p. 2.